Reports that Matter

United States v. Philip Morris USA Inc.: Amended Final Opinion

"CLAIMS THAT CIGARETTES ARE ADDICTIVE IRRESPONSIBLE AND SCARE TACTICS."

Section 54 of 129

"CLAIMS THAT CIGARETTES ARE ADDICTIVE IRRESPONSIBLE AND SCARE TACTICS."

This press release also attacked the Surgeon General's Report and specifically denied any dependence on nicotine, stating:

After years of well-funded research, it has not been established that cigarette smoking produces a physical dependence to nicotine. In fact, it has been impossible to establish that the feelings persons have upon giving up smoking are anything but that which would be expected when one is frustrated by giving up any desired habit.

TIMN0019964-9965 at 9964 (US 85366).

  1. In a July 29, 1988 press release, the Tobacco Institute stated that the Surgeon General's declaration that smoking is an addiction was "[an escalation of anti smoking rhetoric . . . without medical or scientific foundation." TIMN0125189-5189 (US 77065).

  2. The 1988 press release also utilized Tobacco Institute spokesmen/scientists Blau and Stephen Raffle to deny addiction. For example, the Tobacco Institute quoted Raffle in the press release, stating, "Clinically, cigarette smoking does not result in addiction-like behavior." Blau was quoted in the press release as saying that the Surgeon General's report was "misleading and unfortunate." TIMN00125189-5189 (US 77065).

  3. Raffle also provided a statement to the House subcommittee denying addiction. The statement was made at the Tobacco Institute's request, but contained no mention of any Tobacco Institute connection or sponsorship. TIMN207378-7384 (JD-080049).

  4. The July 29, 1988 press release failed to indicate in any way that Raffle and Blau were industry selected, managed, and paid consultants to Defendants and their law firms. Nor did the press release mention that their statements to the House subcommittee had been reviewed by

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Covington & Burling lawyers and several Defendants prior to being delivered to Congress. Instead, the press releases implied that both scientists testified independently before the House Subcommittee. TIMN0125189-5189 (US 77065); 506419103-9103 (US 85372); 87701893-1903 (US 32065); 2025875995-5997 (US 85375).

  1. In a 1989 nationally broadcast interview on "Good Morning America," Tobacco Institute spokesperson Brennan Dawson stated: "I can't allow the claim that smoking is addictive to go unchallenged. . . . The majority of people who smoke make that decision, they can quit if they want to do it. It's a matter of willpower." TIME 389474-9479 at 9476 (US 21286).

  2. The Tobacco Institute published a brochure in March 1989 titled "The Anti-Smoking Campaign: Enough is Enough." In this document, the Tobacco Institute denied that smoking is addictive, emphasizing that: "The fact is that there is nothing about smoking, or about the nicotine in cigarettes, that would prevent smokers from quitting. . . . If a smoker wants to quit, it may take will power, but that's all it takes." TIMN0130559-0578 at 0574 (US 85376).

  3. In another nationally-broadcast interview, in 1990 on "Larry King Live," Ms. Dawson stated on behalf of the Tobacco Institute:

About 95 percent of those people have quit cold turkey. They've walked away from cigarettes and they've not gone through formal treatment centers or anything else. It's not like alcoholism or drug abuse. It's not an addiction. . . . There's nothing about nicotine that prevents you from quitting. And that's the whole difference.

TIMN341405-1422 at 1420 (US 21363).

  1. On February 20, 1990, the Tobacco Institute issued a press release stating that Charles Whitley had appeared before the Senate Committee on Labor and Human Resources on behalf of the Tobacco Institute, had criticized proposed legislation, and had stated that requiring an addiction warning label on cigarette packages and advertisements "defies all logic, when, according to the
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Surgeon General, nearly half of all Americans who ever smoked have quit and most of the 41 million smokers who quit did so without formal treatment programs or smoking cessation devices."

TIMN341503-1504 (US 85377).

  1. During a February 27, 1990 appearance on the program, "Nightwatch," Ms. Dawson stated on behalf of the Tobacco Institute that

Well, the fact is that now in the United States there are as many ex-smokers as there are smokers. And 95 percent of the people who have quit smoking have done it cold turkey. That is, they've just put down their cigarettes and walked away. And that's not the picture of the addictive drugs that we see, at least certainly not with the illegal substances, much less alcohol, that we see in terms of problems in society.

CORTI1731-1738 (US 87735).

  1. The Tobacco Institute published another press release dated July 12, 1990, stating that

Blau had once again testified before a House Subcommittee denying the addictiveness of cigarettes.

The Tobacco Institute provided the following in its press release, once again omitting any mention of the tie between Blau and the cigarette manufacturer Defendants:

The proposed "addiction" warning label is likewise unjustified. Dr. Theodore H. Blau, a practicing clinical psychologist from Tampa, Florida, said that, "In my view, labeling tobacco use 'addictive' is misleading and potentially harmful to the American public." Blau noted that -- unlike heroin addicts, cocaine addicts and alcoholics who are in the process of giving up these drugs -- the alleged "withdrawal symptoms" which some smokers report when giving up smoking are "generally the same kinds of frustrations that one would expect to see when someone discontinues any well-established and well liked habit. Such symptoms as missing the habit and mild

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irritability are similar to the reactions experienced by those who give up coffee or sweets.

TIMN0026755-6757 at 6757 (US 85379).

  1. The Tobacco Institute paid Dr. Raffle to speak out again in 1994 following the sworn testimony of FDA Commissioner Dr. David Kessler that smoking was addictive. In a March 25, 1994 Tobacco Institute press release, the Tobacco Institute Media Relations department restated Raffle's industry-funded and industry-prepared comments that smoking was not "truly addicting" and that "in order to include smoking as an addiction, one must redefine that term, water down its meaning, and ignore critical differences involving every aspect of these behaviors." The press release did not disclose any connection between Raffle and the Tobacco Institute or the cigarette manufacturer Defendants. TIMN328214-8215 (US 77090).

  2. During the nationally broadcast news show "Crossfire" on March 10, 1994, Brennan Dawson, Vice President of Public Affairs at the Tobacco Institute, was asked by host Michael Kinsley, "Is nicotine addictive?" Dawson responded, "Absolutely not. Nicotine is first of all- I mean nicotine occurs naturally in cigarettes. Nicotine is also found in things as scary as potatoes." TI10720452-0464 at 0455 (US 87155*).

  3. During this same interview, Ms. Dawson admitted making the following statement regarding the addictiveness of nicotine:

Well, first of all, let's understand that -- that sometimes we use the word "addiction" in very broad terms. We talk about being, you know, news junkies. We talk about being chocoholics. We -- you know, we -- we put all these broad terms[.] . . . But when we talk about addiction in a classical sense, we're talking about things like, you know, heroin and alcohol, for example, where you're either intoxicated and you can't make a decent decision, or you're in such

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physical withdrawal that you're probably in the hospital. And there's nothing about nicotine specifically that classifies it as such.

Id. at 0459-0460; Dawson WD, 45:7-48:23.

  1. She added that "[t]here is no chemical addiction" to nicotine. TI10720452-0464 at 0460 (US 87155*), Dawson WD, 45:7-48:23.

  2. During the nationally broadcast news show "Face the Nation" on March 27, 1994, Ms. Dawson was asked by host Robert Schieffer, "[D]oes the industry take the position that cigarettes are not addictive?" She responded, "The industry does take that position." (US 89319).

  3. During an April 1, 1994 appearance on the "MacNeil/Lehrer Newshour," when asked, "[d]o you -- do you, in the industry, concede that nicotine is an addictive drug?" Ms. Dawson responded, "[n]o we don't." (US 89300), Dawson WD, 45:7-48:23.

  4. On April 13, 1994, Dawson again appeared on the CNN program "Larry King Live." When she was asked whether nicotine was addictive, she responded, "No, nicotine is not addictive." TIMN0010649-0650 at 0650 (US 62778).

  5. In this litigation, Ms. Dawson testified that the Tobacco Institute's public position was that smoking and nicotine were not addictive and that this position remained unchanged over the years. Dawson WD, 36:8-13; Dawson TT, 1/12/05, 9938:3-9940:19.

  6. Dawson, on behalf of the Tobacco Institute, also admitted that there was no scientific basis for the public statements denying the addictiveness of nicotine, Dawson WD, 49:5-50:4, and that the cigarette manufacturer Defendants never provided the Tobacco Institute with information that nicotine was a drug with a variety of physiological effects and was thought to be responsible for the addictive properties of cigarette smoking. Dawson WD, 53:9-12, 54:8-12, 55:10-14; Dawson TT, 1/12/05, 9958:1-11.

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  1. The Tobacco Institute joined Defendants Philip Morris, RJR, B&W, Lorillard, and Liggett in opposing the Food and Drug Administration's assertion of jurisdiction over cigarettes as drug (nicotine) delivery devices in 1996. In Volume III of the filing prepared and submitted on behalf of the Tobacco Institute and the cigarette manufacturer Defendants, the group denied that nicotine in tobacco was addictive, denied any significant pharmacological effects of nicotine, denied that smokers smoke primarily for nicotine, denied any "threshold" amount of nicotine necessary for addiction, and denied compensation by smokers of low tar products. 2505597781-7998G (see, e.g. 7793-7795) (US 23028*).

  2. The submission of the Tobacco Institute and the five manufacturers named above was publicized at a Tobacco Institute press conference on the morning of January 2, 1996. While the Tobacco Institute's Brennan Dawson led the press briefing, she was accompanied by Philip Morris' Steven Parrish, RJR's Charles Blixt, and Lorillard's Arthur Stevens. TI01750819-0820 (US 87156).

i. CTR 1243. Sheldon Sommers, Research Director of CTR and member of CTR's Scientific

Advisory Board, told a Congressional subcommittee in hearings held in April 1969 that "smoking tobacco is not considered an addiction." 500925974-5998 at 5976 (US 85382); BWX0007189-7297 (US 36237).

  1. Robert Hockett, a subsequent CTR Research Director, stated during Congressional hearings held October 5 and 6, 1978, that while "there is an adjustment " to smoking over time, the issue of tobacco dependence was "a very tough question." 500925974-5998 at 5976 (US 85382).
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  1. Statements such as these were misleading and are contradicted by decades of scientific research conducted by or funded by Defendants, and by a myriad of internal statements by company representatives.

j. Defendants' Conduct Continues 1246. Even today, although certain Defendants have acknowledged, to varying degrees, the

overwhelming evidence that smoking is addictive, no Defendant accepts the Surgeon General's definition of addiction, no Defendant admits that nicotine is the drug delivered by cigarettes that creates and sustains addiction, and no Defendant acknowledges that the reason quitting smoking is so difficult, and not simply a function of individual will power, is because of its addictive nature.

  1. In 1999, Philip Morris first posted on its website a statement that "[w]e agree with the overwhelming medical and scientific consensus that cigarette smoking is addictive" and that it can be difficult to quit smoking. However, there is no mention of the established fact that the nicotine in cigarettes is what causes the smoker's addiction. TLT0770066-0088 (US 72408); Szymanczyk WD, 63:3-7; Parrish TT, 1/25/05, 11038:23-11039:8.

  2. On its current website, BATCo states that "[w]e accept the common understanding today that smoking is addictive." Yet, when discussing quitting smoking, the company makes no mention of the role nicotine plays in maintaining the addiction, downplays the success of nicotine replacement therapy in helping smokers quit, and still states that the most important factor in successful quitting is "having the motivation and the self-belief that you can quit." http://www.bat.com/oneweb/sites/uk3mnfen.nsf/wwPageswebLive/BEDB4BB/FDD4F7CE8025 6BF4000ee157?open document, TLT0231984-1984 (US 86692); (US 89563).

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  1. On its current website, RJR states that, "Many people believe that smoking is addictive, and as that term is commonly used, it is." However, RJR later equivocates on this statement, stating its disagreement with the opinion in the health and scientific communities that smoking is as addictive as heroin or cocaine. RJR does not disclose the role of nicotine in the addiction. TLT0770095-0128 (US 72410); Beasley WD, 67:16-23.

  2. On its current website, B&W recites its new public position that it "agrees that, by current definitions of the term 'addiction,' including that of the Surgeon General in 1988, cigarette smoking is addictive." Two paragraphs down from this, however, B&W reverts to its former denials, omitting any reference to nicotine and stating the following :

Although smoking can be very difficult to quit, we do not believe that the term "addiction" should be used to imply that there is anything in cigarette smoke that prevents smokers from reaching and implementing a decision to quit. Smoking may indeed be difficult to quit, but people can quit and do so in large numbers. The scientific literature demonstrates that smokers who believe they can quit, and who believe that the benefits of quitting outweigh the enjoyment of continuing to smoke, can do so.

TLT1020158-0158 (US 87157); Ivey WD, 94:16-96:1.

  1. B&W's current Nicotine and Addiction section does not even discuss nicotine or its effects on the human body. In sum, the B&W current, post-MSA position continues to deny that any aspect of smoking "prevents" a smoker from quitting. Moreover, this position continues to confuse and distort the facts on addiction, namely that smoking is very difficult to quit primarily because of nicotine and that quitting is not simply a question of willpower and motivation. At the same time, the position refers to "the enjoyment of continuing to smoke," suggesting that smokers smoke simply for continued "enjoyment," as opposed to a physiological craving or need for nicotine. TLT1020158-0158 (US 87157); Ivey WD, 94:16-96:1.
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  1. Susan Ivey, former president and CEO of B&W and current CEO of RJR and Reynolds American, stated in 2004 that while B&W believed that nicotine is a "significant contributor to addiction," the company would not agree that nicotine is an addictive drug. Ivey TT, 11/16/04, 6194:21-6195:5.

  2. Lorillard's current position, as of 2005, is that smoking is addictive but only in the same way as "repetitive pleasurable activities that can be difficult to stop." Lorillard believes that smoking is not addictive in a "pharmacological sense." Orlowsky WD, 116:14-117:18. With respect to nicotine, President and CEO Martin Orlowsky stated, on behalf of Lorillard, that the company does not take a public position" and does not know if nicotine is an addictive drug or not. Id. at 121:15-22.

  3. The Lorillard website has recently added a statement that includes the sentence, "Cigarette smoking can also be addictive." However, this statement does not define the term "addictive," and omits any reference to nicotine. (JD-024979).

  4. Martin Orlowsky agreed that Lorillard's position was that smoking is addictive, but he "did not know what a 'drug addiction' is." Orlowsky WD, 119:21-121:6. Orlowsky would only say that "nicotine is an important part of smoking" and refused to accept the fact that nicotine was the ingredient in cigarettes that made cigarette smoking addictive. Orlowsky WD, 119:21-121:6, 121:15-122:6. Orlowsky was a particularly evasive and unresponsive witness in this litigation. His testimony was not credible.

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  1. While Philip Morris now appears to have accepted that smoking and nicotine are addictive, that new position was not adopted until 2000, after the filing of this lawsuit. After decades of consistent public denials by different corporate executives, Philip Morris USA President and CEO Michael Szymanczyk first admitted in June 2000 that nicotine was addictive. Philip Morris USA subsequently added a statement to its website in October 2000 agreeing that "cigarette smoking is addictive, as that term is most commonly used today." That statement has since been modified to read, "We agree with the overwhelming medical and scientific consensus that cigarette smoking is addictive." However, the Philip Morris USA website still omits any information on nicotine. Szymanczyk PD, United States v. Philip Morris, et al., 6/13/02, 249:15-254:8, 267:10-270:3.

  2. Philip Morris International changed its public position to agree with the public health community's conclusions that smoking is addictive at the same time (October 2000) that Philip Morris USA did so. 2078850517 (US 45218).

  3. Philip Morris adopted its current position that nicotine when found in cigarette smoke is addictive for the first time in January 2003, in a pleading filed in this case. USX639001-0400 (US 89555). The company's present definition of addiction is "a repetitive behavior that's associated with an adverse outcome." The "adverse outcome" is disease associated with smoking. Philip Morris believes that if the risk of disease were eliminated, cigarette smoking would no longer be an addiction. In addition, Philip Morris continues to dispute that nicotine is in and of itself an addictive drug. Carchman PD, United States v. Philip Morris, et al., 6/6/03, 14:6-15:12, 22:3-23:3, 23:19-20, 25:4-26:24, 29:1-13, 85:17-86:10.

  4. According to Denise Keane, general counsel for Defendant Philip Morris USA, Philip Morris never publicly explained its position that cigarette smoking is not addictive because the company believes it should properly be characterized as a drug dependence. Keane TT, 1/18/05,

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  1. Ms. Keane also admitted that when Philip Morris purchased three Liggett brands in 1999, L&M, Lark, and Chesterfield, it removed the pre-existing package labels stating that smoking is addictive. Keane TT, 1/18/05, 10457:5-10460:16.

  2. While Philip Morris replaced the pre-existing package labels with onserts, these onserts did not contain the statement that Philip Morris agrees that smoking is addictive, even though Philip Morris had publicly stated this view in 2000 as already noted. Keane TT, 1/18/05, 10460:17- 10462:15.

  3. While Philip Morris told people that it agrees that cigarette smoking is addictive, it has not told the public that it agrees that it is the nicotine delivered in cigarette smoking that is addictive. Ms. Keane, Philip Morris' general counsel, admitted this was material information that the public should possess. Keane TT, 1/18/05, 10533:5-10534:4.

  4. In spite of the overwhelming medical and scientific evidence, only one cigarette manufacturer Defendant, Liggett, has placed a warning on its packages flatly and clearly stating that nicotine is addictive. Liggett advertising and packaging state, "Smoking is Addictive." LeBow TT, 2/7/05, 12375:21-12376:1.

  5. Moreover, no cigarette company Defendant other than Liggett and Philip Morris, has admitted that nicotine in cigarette smoke is addictive. Liggett is the only Defendant to do so publicly.

  6. Geoffrey Bible, former CEO of Philip Morris Companies, was the ultimate authority on the content of public statements on smoking and health made by Philip Morris Companies' subsidiaries, including Philip Morris USA. Bible PD, United States v. Philip Morris, et al., 8/22/02, 83:9-84:9, 85:22-86:25.

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